Court ofMarket

Common Justice
Law Review 42: 1465–1489, 2005. 1465
© 2005 Kluwer Law International. Printed in the Netherlands.

Case C-209/03, R (on the application of Danny Bidar) v. London Borough of

Ealing, Secretary of State for Education and Skills, judgment of the Court
(Grand Chamber) 15 March 2005, not yet reported.

1. Introduction

With the benefit of hindsight, when the Court ruled in Gravier1 that migrant
and non-migrant students should be charged the same fees for higher educa-
tion, and in Raulin2 that they should enjoy equal access to any assistance
provided to cover those costs, it was only a matter of time before the Court
would rule that migrants lawfully resident in a Member State should be
treated in the same way as nationals in respect of access to maintenance
grants and loans. To a certain extent, that moment has come with Bidar. The
introduction of the concept of Union citizenship has served to accelerate this
development. The aim of this note is to consider the ruling in Bidar in terms
of its place in the evolution of the concept of Union citizenship, together
with its relationship with the new EU Citizens Directive 2004/38,3 and its
implications for funding higher education

2. Factual and legal background

2.1. The facts

Dany Bidar, a French national, and his mother came to the United Kingdom
in August 1998 to live with his grandmother. After his mother’s death, Bidar
continued living with his grandmother who supported him while he attended
the local secondary school. In September 2001 he started reading economics
at University College London. While he received assistance with his tuition
fees (which were charged to him at the same rate as for British students), his
application for financial assistance to cover his maintenance costs, in the

* Thanks to Alan Dashwood, Michael Dougan, Carola Geist-Divver, Clive Lewis and
Helen Toner for helpful discussions and comments on earlier drafts.
1. Case 293/83, Gravier v. Ville de Liège, [1985] ECR 593.
2. See e.g. Case C-357/89, Raulin v. Minister van Onderwijs en Wetenschappen, [1992]
ECR I-1027, para 28.
3. O.J. 2004, L 158/77.

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 1466 Case law CML Rev. 2005

form of a student loan,4 was refused on the grounds that he did not satisfy
the conditions laid down in the Student Support Regulations 2001. Accord-
ing to these rules, a student was entitled to a loan if:5
– he was settled in the United Kingdom.6 Nationals of another Member State
could never, in their capacity as students, obtain the status of being settled in
the UK;7
– he was ordinarily resident in England and Wales on the first day of the first
academic year of the course;
– he had been ordinarily resident in the UK throughout the three year period
preceding that day; and
– his residence in the UK had not been wholly or mainly for the purpose of
receiving full time education during any part of that three year period.
These rules applied to those who were not economically active.8 On the basis
of these rules Bidar was refused a student loan on the grounds that he was
not “settled” in the UK. Moreover, as long as he was a student, Bidar could
never be considered “settled” in the UK.

2.2. The pre-Bidar case law

An understanding of Bidar and its significance depends in turn on an appre-

ciation of three earlier cases: Brown,9 Grzelczyk10 and Trojani.11 The Court’s
decision in Brown12 was the basis on which the United Kingdom refused to

4. Under the Student Support Regulations, students who were recipients of a loan receive
75% of the maximum amount of the loan, while the remaining 25% was granted on the basis of
the financial position of the student and of his parents. The loan was provided at an interest rate
linked to the rate of inflation (and thus below the normal rate for a commercial loan). The loan
was repayable only after the student completed his studies, provided that he earned in excess of
£10,000 (Bidar, para 11).
5. Bidar, para 15.
6. This meant that he was ordinarily resident there without being subject to any restriction
on the period for which he could remain in the territory (Bidar, para 17).
7. Bidar, para 18.
8. For those who were economically active, and so covered by Regulation 1612/68 (i.e.
migrant workers and their families) the Student Support Regulations did not require them to be
settled in the UK. Their eligibility for a student loan was still subject to the same residence
requirements as for those who were not economically active, but they were deemed to have
satisfied the condition of ordinary residence from the time when they resided in the European
Economic Area.
9. Case 197/86, Brown v. Secretary of State for Scotland, [1988] ECR 3205.
10. Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-
la-Neuve, [2001] ECR I-6193.
11. Case C-456/02, Trojani v. CPAS, [2004] ECR I-7573.
12. And Lair, handed down the same day: Case 39/86, Lair v. Universität Hannover,
[1988] ECR 3161.

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 Court of Justice 1467

provide Bidar assistance with his maintenance costs. Brown was a student
with dual French and British nationality living in France but with a place at
Cambridge University to read engineering. Prior to starting the course he
worked for a company in the UK for eight months. The Court refused to rec-
ognize him as a worker, viewing his employment as merely ancillary to his
studies,13 and so he could not claim a grant as a social advantage under Ar-
ticle 7(2) of Regulation 1612/68. More significantly for our purposes, the
Court also said that he could not rely on the general prohibition of discrimi-
nation in Article 12 to obtain a maintenance grant because, at that stage of
development of Community law, the assistance given to students for mainte-
nance and training fell outside the scope of the EC Treaty for the purposes of
Article 12 EC.14 This view was confirmed by Article 3 of the Students’ Di-
rective 93/96 which provided that the Directive did not establish any entitle-
ment to a maintenance grant payable by the host State for students who
benefited from the right of residence.
The decision in Brown/Lair created an arbitrary but significant distinction
between fees – to be applied on a non-discriminatory basis – and mainte-
nance grants/loans which were not. The question remaining after Brown/Lair
and Article 3 of Directive 93/96 was whether it was only maintenance grants
that were excluded from the scope of the EC Treaty or whether all assistance
given to students was excluded (including income support, housing benefit
and child support). This issue was addressed in Grzelczyk. Grzelczyk was a
French student studying at a Belgian university. Having supported himself fi-
nancially during the first three years of study, he applied to the Belgian au-
thorities for a minimex (a guarantee of minimum income) to fund his fourth
and final year. He was turned down on the grounds that he was neither Bel-
gian nor a worker under Regulation 1612/68. However, when considering
Grzelczyk’s position as a Union citizen the Court used its now oft-repeated
statement that “Union citizenship is destined to be the fundamental status of
nationals of the Member States, enabling those who find themselves in the
same situation to enjoy the same treatment in law irrespective of their nation-
ality, subject to such exceptions as are expressly provided for” (para 31). It
continued that “a citizen of the European Union, lawfully resident in the ter-
ritory of a host Member State, can rely on Article [12] of the Treaty in all
situations which fall within the scope ratione materiae of Community law”,
including “those situations involving the exercise of the fundamental free-
doms guaranteed by the Treaty and those involving the exercise of the right

13. Brown, para 27.

14. Brown, para 18.

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 1468 Case law CML Rev. 2005

to move and reside freely in another Member State, as conferred by Article

18 of the Treaty.”
Having brought Mr Grzelczyk within the scope of Community law, the
Court then turned to the effect of Brown. It noted that the introduction of
Union Citizenship, and the addition of a new chapter devoted to education
and vocational training, by the Maastricht Treaty, along with the adoption of
Directive 93/96 on the rights of residence for students, had changed the legal
landscape since Brown, with the result that migrant students now retained the
rights of Union citizens. These rights included the possibility of relying on
the principle of non-discrimination laid down by Article 12 read with Article
18(1). Article 18(1) gives citizens the right to move and reside freely within
the territory of the Member States, subject to the limitations and conditions
laid down by the Treaty (e.g. public policy, pubic security, public health) and
by the measures adopted to give it effect (e.g. the limitatons in Art. 1 of the
Students’ Directive 93/96 requiring the migrant student to have adequate re-
sources so as to avoid becoming a burden on the system of social assistance
of the host State). The fact that Grzelczyk had sought financial assistance
from the State suggested that he no longer satisfied the requirement of ad-
equacy of financial resources, and so could have his right of residence with-
drawn under Article 4 of Directive 93/96.
However, the Court said that withdrawing a residence permit could not be-
come “the automatic consequence” of a migrant student having recourse to
the host State’s social assistance system.15 It added that the preamble envis-
ages that beneficiaries of the right of residence could not become an “unrea-
sonable burden on the public finances of the host Member State”16 and
continued: “Directive 93/96, like Directives 90/364 and 90/365,17 thus ac-
cepts a certain degree of financial solidarity between nationals of a host
Member State and nationals of other Member States, particularly if the diffi-
culties which a beneficiary of the right of residence encounters are tempo-
rary.”18 As a result, the Court concluded that Articles 12 and 18 EC, read
together, prohibited discriminatory treatment against migrant students so
long as they did not become an unreasonable burden on the host State. This
suggested that while the rule in Brown continued to apply to maintenance
grants (where the principle of equal treatment would not apply), when finan-
cial support for students took the form of general social assistance (e.g. in-
come support, housing benefit, child support) the principle of equal
treatment would apply.19

15. Grzelczyk para 43. See now Art. 14(3) of Dir. 2004/38.
16. Para 44. See now the 16th preambular paragraph to Directive 2004/38.
17. On persons of independent means and retired person respectively.
18. Para 44, emphasis added.
19. Cf. case note by Iliopoulou and Toner in 39 CML Rev., 609, 612.

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 Court of Justice 1469

Access to the minimex by an indigent migrant, but this time a migrant

who was not a student, was at issue in Trojani. Trojani was a French national
who had been living in a Salvation Army hostel in Belgium where, in return
for board and lodging and some pocket money, he did various jobs for about
30 hours a week. He was denied the minimex on the grounds that he was nei-
ther Belgian nor a worker under Regulation 1612/68. In respect of his rights
as a citizen, the Court said that while Trojani did not derive from Article 18
the right to reside in Belgium due to his lack of resources, since he was law-
fully resident in Belgium, as was shown by the residence permit which the
Belgian authorities had issued to him, he could benefit from the fundamental
principle of equal treatment laid down in Article 12.20
Thus, Grzelczyk brought indigent migrant university students lawfully
resident in the territory of another Member State within the scope of the
Treaty, while Trojani allowed lawfully resident migrants to benefit from Ar-
ticle 12 even where they did not satisfy the provisions of the 1990 Residence
Directives. In another case, D’Hoop,21 the Court brought migrant school
children within the scope of the Treaty,22 thereby allowing a Belgian woman,
who had attended university in Belgium but completed her secondary educa-
tion in France, to claim a tideover allowance from the Belgian Government.
In all three cases non-contributory social assistance benefits were at stake.
Bidar’s situation – a lawfully resident migrant who had come to the UK as a
school child but who was now at university seeking access to a student loan
– cut across the facts of these three cases.

3. The judgment of the Court

As in Grzelczyk and D’Hoop, the Court said in Bidar that a citizen of the
Union, including students (both of a secondary and tertiary level), lawfully
resident in the territory of another Member State could rely on Article 12 in
respect of all situations falling within the material scope of the Treaty, in-
cluding those involving the exercise of the right to move and reside freely
within the territory of the Member States as conferred by Article 18(1).23
Bidar’s right of residence came from Article 18 read, not with the Students
Directive 93/96, but the Persons of Independent Means Directive 90/364, the
conditions of which he was deemed to have satisfied. As he was lawfully

20. See Trojani, paras. 36–40.

21. Case C-224/98, D’Hoop v. Office national de l’emploi, [2002] ECR I-6191.
22. See also Case C-148/02, Garcia Avello, [2003] ECR I-11613.
23. Bidar, paras. 32–35.

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 1470 Case law CML Rev. 2005

resident in the UK, he was entitled to equal treatment under Article 12 in re-
spect of social assistance benefits, even though he was not economically ac-
tive.24
The question was whether those benefits included assistance with mainte-
nance costs for students attending university, whether through subsidized
loans or grants. All six intervening States,25 together with the UK and the
Commission, argued that, following Brown and Article 3 of the Students’ Di-
rective, maintenance should not be included. The Court disagreed. It said
that given the changes that had occurred at EU level in respect of education
and training since Lair and Brown, documented by the Court in Grzelczyk,26
and now confirmed by Article 24 of the EU Citizens Directive 2004/38, so-
cial assistance for a student “whether in the form of a subsidised loan or a
grant, intended to cover his maintenance costs” fell within the scope of ap-
plication of the Treaty.27 Bidar was therefore entitled to have the principle of
non-discrimination on the grounds of nationality applied to him.28
The Court said that the English rules were indirectly discriminatory: re-
quiring students to be settled in the UK and to satisfy certain residence con-
ditions risked placing nationals of other Member States at a disadvantage
since both conditions were likely to be more easily satisfied by United King-
dom nationals.29 However, the UK put forward two justifications for the rule:
first, that it was legitimate for a Member State to ensure that the contribution
made by parents or students through taxation was or would be sufficient to
justify the provision of subsidized loans; and second that it was legitimate to
require a genuine link between the student claiming assistance to cover his
maintenance costs and the employment market of the host Member State.30
The Court then offered its own, recast justification. It said that while in
the organization and application of their social assistance schemes Member
States had to show a certain degree of financial solidarity with nationals of
other Member States, it was legitimate for a Member State to grant assis-
tance only to students who had demonstrated a certain degree of integration
into the society of that State.31 How could this degree of integration be

24. Paras. 36–37.

25. See the Report for the hearing, paras. 19–27. See also A.G. Geelhoed’s Opinion in
Bidar, para 37.
26. See supra 2.2
27. Paras. 38–42.
28. Presumably for so long as he did not become an unreasonable burden on the state: see
Dougan, “Fees, grants, loans and dole cheques: Who covers the costs of Migrant Education
within the EU”, 42 CML Rev., 943–986.
29. Para 53.
30. The UK therefore invoked the justification raised by the Court itself in D’Hoop.
31. Paras. 56–57.

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shown? Not by establishing a link with the State’s employment market

“[s]ince the knowledge acquired by a student in the course of his higher edu-
cation does not in general assign him to a particular geographical employ-
ment market” (para 58), but through a period of residence. The Court then
suggested that a three year residence requirement was compatible with Com-
munity law (para 60). In other words, the three year residence rule was justi-
fied and proportionate to a legitimate aim.
As to the additional condition laid down by English law that students were
entitled to assistance to cover their maintenance costs only if they were also
settled in the UK, the Court said that such a requirement could not be justi-
fied. While acknowledging that the requirement to be settled shared with the
residence requirement a way of demonstrating a certain degree of integration
into the society of that State, the Court said that because no national of an-
other Member State could ever obtain settled status as a student, this condi-
tion could not be regarded as justified by the legitimate objective which
those rules sought to secure (para 61). As a result, this requirement has now
been dropped from the English and Welsh rules. From academic year 2004-5
a new category of EU students have become eligible for grants on condition
that they are:
– ordinarily resident in England and Wales on the first day of the first aca-
demic year of the course, and
– have been ordinarily resident throughout the three year period preceding
the first day of the first academic year of the course in the UK.32
In respect of this category of EU students, there is no longer a requirement
for the individual to be settled in the UK. Furthermore, the new rules have
dropped the prohibition of entitlement if residence has been wholly or
mainly for the purpose of full time education.33

4. Assessment

4.1. Lawful residence

The Article 18(1) cases which preceded Bidar were premised on the fact that
the migrant was legally resident in the host State. In Grzelczyk the student
was legally resident under Community law because he had satisfied the con-
ditions laid down by the Students’ Directive 93/96 for three years; in Trojani
the legal residence came not from Directive 90/364 (independent means),

32. SI 2005/1341 The Education (Student Support) (Amendment) Regulations 2005.

33. For further details see: www.dfes.gov.uk/studentsupport/students/news_44.shtml

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 1472 Case law CML Rev. 2005

whose conditions Trojani did not satisfy, but from the fact that he had been
issued with a residence permit by the Belgian authorities under national
law.34 The Court confirmed in Bidar (at para 37) what it had already pointed
out in Trojani (at para 43): “a citizen of the Union who is not economically
active may rely on Article 12 EC where he has been lawfully resident in the
host state for a certain period of time or possesses a residence permit” (em-
phasis added). Thus, legal residence can come about in one of two ways: by
actual (lawful) presence in the host State for a certain period of time or by
having a residence permit.
Bidar did not have a residence permit because there is, at present, no obli-
gation on any EU national in the UK to register with any official body. He
therefore had legal residence under the first limb of the Trojani rule (lawful
residence in the host State for a certain period of time). But what was the
legal basis for such residence? The answer seems to be that he enjoyed legal
residence – probably under Community law – simply because he was not il-
legally resident. Specifically, no one had complained about him not having
sufficient resources or sickness insurance as required by Article 18 and Di-
rective 90/364 (cf. para 36). Bidar therefore suggests that the burden of
proof is on the State to show that the individual does not have sufficient re-
sources or sickness insurance prior to removing the individual from the State
rather than on the migrant citizen to show that he has sufficient resources/
medical insurance to entitle him to stay.
The approach in Bidar also helps to explain the first but most opaque of
the citizenship cases, Martínez Sala.35 Martínez Sala, a Spanish national,
lived in Germany for 25 years, doing various jobs and holding various resi-
dence permits. At the time she had a baby, she did not have a residence per-
mit but she did have a certificate saying that an extension of the permit had
been applied for. The German authorities refused to give her a child-raising
allowance on the grounds that she was neither a German national nor did she
have a residence permit. Like Trojani, Martínez Sala clearly did not satisfy
the requirements of any of the Residence Directives, especially Directive 90/
364; unlike Trojani she did not have a residence permit. However, this was
not fatal to her claim to equal treatment because, as the Court has said on
numerous occasions, residence permits have only probative value.36 It now
seems that her legal residence, like Bidar’s, was derived from the fact that
she had been “lawfully resident in the host Member States for a certain
time”.

34. Trojani, judgment para 37; A.G. Geelhoed’s Opinion, para 73.
35. Case C-85/96, Martínez Sala, [1998] ECR I-2691.
36. To this effect, see Case 48/75, Royer, [1976] ECR 497, para 50.

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 Court of Justice 1473

This case law therefore reinforces the paradox first observed by O’Leary
in her note on Martínez Sala37 that while the Court of Justice is emphasizing
the importance of the citizenship provisions of the Treaty it is, at the same
time, giving Member States an incentive to be more proactive in seeking out
and removing such individuals from their territories before the “certain time”
(25 years in Martínez Sala’s case, 3 years in Bidar’s case) has elapsed which
will entitle them to claim, as Union citizens, benefits on equal terms to na-
tionals. For countries such as the UK and Ireland, with their traditional em-
phasis on checks at the frontier rather than in-state controls based on identity
cards and residence permits, policing the residence status of Union citizens
presents particular challenges.

4.2. Entitlement to equal treatment in respect of maintenance grants and

loans

Bidar makes clear that migrant citizens can in principle have access to main-
tenance loans and grants on the same terms as nationals but only if they have
been lawfully resident in the host state for a certain time or have a residence
permit. In other words, the entitlement to equal treatment in respect of main-
tenance grants and loans (as well as fees) applies to those who go to another
Member State not qua university student but in some other capacity and re-
side there legally, either under Community law (on the basis of Art. 18 EC
and Directive 90/364 (Bidar)) or under national law (Trojani by analogy). To
this extent Bidar reverses the rule in Brown/Lair that maintenance grants are
not available to migrants.
However, the position of migrants who go to another Member State qua
student is different. As the Court said in Bidar, at paragraph 45, migrant citi-
zens who “go to another Member State to start or pursue higher education
there and enjoy a right of residence for that purpose under [the Students’]
Directive 93/96” are not entitled to equal treatment in respect of access to
maintenance grants or loans (but they are in respect of fees). This is due to
the express limitation laid down by Article 3 of the Students’ Directive 93/
96. In this respect, the legacy of Brown/Lair lives on.
The distinction between those who migrate qua student and those who
migrate for other purposes but who happen to go on to be students38 had al-
ready been drawn by Advocate General Geelhoed in Ninni-Orasche (al-

37. O’Leary, “Putting flesh on the bones of European Union Citizenship”, 24 EL Rev.
(1999), 68, 78.
38. This distinction was also drawn by A.G. Geelhoed in Bidar, paras. 18–19 and again in
paras. 40–53.

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though the Court decided the case on other grounds).39 Ninni-Orasche, an

Italian, married an Austrian national and was given leave to enter and reside
in Austria. After doing various casual jobs for a number of years she started
studying at an Austrian university but was refused study finance.40 The Ad-
vocate General said that, as she was just starting her course, Article 3 of the
Students’ Directive 93/96 precluded her from obtaining maintenance grants
in Austria. However, he then considered her other capacity – that of legal
resident, living in another Member State “in a capacity which is not con-
nected primarily with the exercise of the fundamental economic freedom”.41
When viewed from this perspective, he said, the restrictions contained in Ar-
ticle 18(1) EC did not apply. He continued that only Articles 17 and 12 EC
were relevant, and could “in specific circumstances, confer a right to equal
treatment even where social advantages which are not granted under the di-
rectives on residence are concerned” (para 92). He concluded that a resident
like Ninni-Orasche with a “demonstrable and structural link to Austrian soci-
ety” could not be treated in Austria “as any other national of a third country”
(para 96). She was therefore entitled to equal treatment unless unequal treat-
ment could be objectively justified (para 98).
But how does an individual show a “demonstrable and structural link” to
the society of the host State? Lawful residence for a “certain time” would be
one way of demonstrating this. Bidar tells us that where a Member State re-
quires a period of three years lawful residence that is sufficient to demon-
strate such a degree of integration and, further, the Court impliedly accepts
that such a rule is objectively justifiable. Therefore, EU students coming to
the UK to start a degree course would not be able to claim assistance with
their maintenance nor would those coming to the UK to follow a two year
“A” level course prior to going to a British university. The effect of this as-
pect of the Bidar judgment was to save the British taxpayer between £66–75
million pounds a year.42 On the other hand, the situation is likely to be differ-

39. Case C-413/01, Franca Ninni-Orasche v. Bundesminister für Wissenschaft, Verkehr

und Kunst, [2003] ECR I-13187.
40. She did not satisfy the criteria laid down in Lair, supra note 12.
41. Para 91. I.e. as the spouse of a national with potentially indefinite residence in Austria.
42. The report for the hearing (para 14) states that student loans constitute a cost to the State
as the result of reduced interest rates and repayment problems, a cost which the Secretary of
State estimated as 50% of the value of the loans. The average loan granted to a student for the
academic year 2000–2001 was £3,155. If the 41 713 nationals of the European Union who
studied in England and Wales during 2000–2001 and who were not settled there had been
eligible for a student loan, the likely cost to the State would have been £66 million (see also
para 25 of the judgment). The A.G. also noted that “following enlargement of the Union on 1
May 2004, this figure could rise to £75 million per annum” (para 70).

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ent for EU students ordinarily resident in the UK and doing a four year
course (typically two years of GCSEs followed by two years of “A” levels).
They will have received a substantial part of their secondary education in the
UK,43 and may well be considered sufficiently integrated into the UK to
claim assistance with maintenance on the same terms as nationals.

4.3. The creative use of citizenship by the Court

Bidar provides a further example of the Court making creative use of the
concept of Union citizenship. In order to ensure that citizenship is “not
merely a hollow or symbolic concept”,44 the Court has already shown that it
is prepared to use the advent of Union citizenship to require a rethink of the
orthodox case law on free movement of persons.45 It has also used citizen-
ship to justify limiting the limits to the Residence Directives by applying the
principle of proportionality in a rigorous fashion.46 Therefore, following
Grzelczyk, having sufficiently sufficient resources (as opposed to full re-
sources) is enough to satisfy Article 1 of the Students’ Directive47 and, fol-
lowing Bidar, the limits in Article 3 in respect of maintenance grants do not
apply to migrants who have resided in the host State for 3 years. Bidar, like
Trojani, also confirms that the Court is prepared to use citizenship to require
equal treatment for those migrants who are not economically active but are
lawfully resident in the host State, even under national law. Read together,

43. A contrario, para 62.

44. A.G. Geelhoed in Bidar, para 28.
45. In Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions,
[2004] ECR I-2703. The Court said that, as a work seeker, the rights Collins enjoyed under Art.
39 and Regulation 1612/68 were limited to equal treatment in respect of access to employment;
he did not enjoy equal treatment in respect of social (financial) advantages. However, the Court
then said that “in view of the establishment of citizenship of the Union”, it was no longer
possible to exclude from the scope of Art. 39 benefits of a “financial nature intended to facili-
tate access to employment in the labour market of a Member State”. Therefore, while the ortho-
dox case law would deny Collins even the chance of claiming a benefit, the orthodox case law,
as interpreted through the lens of citizenship would not. As Golynker puts it in “Jobseekers’
rights in the European Union: Challenges of changing the paradigm of social solidarity”, 30 EL
Rev. (2005), 111, 115: “Collins proved that the Court of Justice is determined to ensure that
Art. 17 is destined to be a genuine constitutional tool of interpretation of all Community provi-
sions concerning the right to free movement of persons and residence”.
46. See also Case C-413/99, Baumbast and R v. Secretary of State for the Home Depart-
ment, [2002] ECR I-7091 and Case C-200/02, Kunqian Catherine Zhu, Man Lavette Chen v.
Secretary of State for the Home Department, judgment of 19 Oct., nyr. See also Dougan and
Spaventa, “Educating Rudy and the (Non-)English Patient: A double bill on residency rights
under Article 18 EC”, 28 EL Rev. (2003), 699.
47. And sufficient (rather than comprehensive) medical insurance is enough to satisfy Art.
1 of the Person of Independent Means Directive (Baumbast).

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 1476 Case law CML Rev. 2005

these cases demonstrate the dynamic ways in which citizenship can be used,
limited only by a traditional discrimination analysis.48
For our purposes, one of the most radical uses of citizenship is to justify
applying the principle of non-discrimination on the grounds of nationality to
areas such as education which are on the margins of Community compe-
tence.49 Gravier50 paved the way in this respect when the Court said that
“unequal treatment based on nationality must be regarded as discrimination
prohibited by Article [12] of the Treaty if it falls within the scope of the
Treaty” (para 15). It then went on to find that although educational organiza-
tion and policy were (at that time) not included in the spheres which the
Treaty had entrusted to the Community institutions, the conditions of access
to vocational training did fall within the scope of the Treaty.51 Thus, as
Dougan puts it, following Gravier, provided an issue falls within the purview
of some provision of the Treaty, it automatically falls within the material
scope of the Treaty as a whole, even if there is no direct connection between
the trigger provision and the pending claim to equal treatment brought under
Article 12.52 The Court has now harnessed this approach to its case law on
citizenship. This has meant that, in the field of education, following the
changes to Community competence documented in Grzleczyk, the Court was
able to apply the principle of non-discrimination to maintenance grants for
those who are legally resident in the host State even though the Community
could not itself legislate in this field.

4.4. Solidarity and integration

But on what basis are non-economically active students entitled to (finan-

cially expensive) maintenance? Unlike migrant workers, it cannot be argued
that they have contributed to the economy of the host State53 through taxa-

48. I.e. that it is open to a host State to rely on an express derogation to justify a directly
discriminatory rule and express derogations or objective justification to justify an indirectly
discriminatory rule: A.G. Jacobs in Case C-147/03, Commission v. Austria (access to higher
education; infra note 99), Opinion of 20 Jan. 2005, para 23.
49. The European Community has only “supporting competence” in the field of education:
see Arts. 149 and 150 EC (and Art. I-17(e) CT). See also Weatherill, “Better competence moni-
toring”, 30 EL Rev. (2005), 23. Even in areas which fall within the competence of the Member
States, the Court has insisted that they must, nonetheless, exercise their competence consis-
tently with Community law. See e.g. in the field of taxation, Case C-80/94, Wielockx, [1995]
ECR I-2493, para 16; Case C-319/02, Manninen, [2004] ECR I-7477, para 19.
50. Gravier, supra note 1.
51. Paras. 19 and 25.
52. Dougan, op. cit. supra note 28.
53. Although the Court’s case law on the definition workers, to include migrants who re-
ceived only limited wages and work a small number of hours (e.g. Case 139/85, Kempf, [1986]
ECR 1741 and Raulin, supra note 2), rather undermines the substance of this rationale.

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 Court of Justice 1477

tion.54 Instead, the answer appears to lie in the degree to which the migrant is
integrated into the community of the host State combined with a notion of
social solidarity between members of that community.55 At national level,
welfare states are legitimized, at least in part, by a diffuse sense of solidarity:
national taxpayers pay their taxes to help look after their fellow citizens in
need. This sense of solidarity is founded on some feeling of shared interests
which in turn is based on a shared nationality56 and/or a shared sense of
identity. Thus national citizenship leads to the evolution of a sense of na-
tional solidarity. The striking feature of both Grzelczyk and Bidar is that the
Court has taken the concept of European Union citizenship, the “fundamen-
tal status of nationals of the Member States”,57 to justify the creation of a
sense of transnational solidarity between (taxpaying) nationals of a host
Member State and (impoverished migrant) nationals of other Member States,
with the result that the migrant needs to be treated in the same way as na-
tionals.
However, the reference in Grzelczyk and Bidar to merely “a certain degree
of financial solidarity”58 indicates that the notion of solidarity is limited.
Grzelczyk suggests that the limits to the solidarity – and thus the equality –
principle are related to the degree to which the migrant is integrated into the
society of the host State. Bidar makes this point expressly. Having referred
in paragraph 56 to the need for Member States to show “a certain degree of
financial solidarity with nationals of other Member States” in the organiza-
tion and application of their social assistance systems, the Court continued
that “[i]n the case of assistance covering the maintenance costs of students, it

54. For a criticism of such arguments see A.G. Geelhoed’s Opinion in Bidar at para 65.
55. In his Opinion in Case C-70/95, Sodemare SA, Anni Azzurri Holding SpA and Anni
Azzurri Rezzato Srl v. Regione Lombardia, [1997] ECR I-3395, para 29, A.G. Fennelly defined
solidarity as the “inherently uncommercial act of involuntary subsidization of one social group
by another”. The meaning of solidarity in the EU context is considered further in Barnard,
“Solidarity as a tool of new governance” in De Búrca and Scott (Eds.), New Governance and
Constitutionalism in Europe and the US (Oxford, Hart, forthcoming).
56. See D. Miller, “In defence of nationality” in Miller, Citizenship and National Identity
(Cambridge, Polity Press, 2000), cited in Barber, “Citizenship, nationalism and the European
Union”, 27 EL Rev. (2002), 241, 250 who notes that it is an observable fact that nationality is
the principle source of solidarity.
57. Grzelczyk, paras. 30 and 31; Garcia Avello, paras. 22 and 23 and Bidar, para 31.
58. Grzelczyk, para 44; Bidar, para 56 (emphasis added). Baumbast, supra note 46, a case
decided under Directive 90/364, can also be explained in terms of solidarity, as A.G. Geelhoed
noted in Bidar, para 31: “The notion of ‘unreasonable burden’ is apparently flexible and, ac-
cording to the Court, implies that Directive 93/96 accepts a degree of financial solidarity be-
tween the Member States in assisting each other’s nationals residing lawfully in their territory.
As the same principle is at the basis of the conditions imposed by Directive 90/354, there is no
reason to presume that this same financial solidarity does not apply in that context too.”

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 1478 Case law CML Rev. 2005

is thus legitimate for a Member State to grant such assistance only to stu-
dents who have demonstrated a certain degree of integration into the society
of that State.” (para 57.) And length of residence is a key indicator of inte-
gration: “… the existence of a certain degree of integration may be regarded
as established by a finding that the student in question has resided in the host
state for a certain length of time”. 59
Thus, the Court seems to be adopting a “quantitative” approach to equal-
ity:60 the longer migrants reside in the Member State, the more integrated
they are in that State and the greater the number of benefits they receive on
equal terms with nationals. So, the cases appear to span a spectrum:61 at one
end is Martínez Sala, a long-term resident (having lived in Germany for 25
years and had two children there), fully integrated into the host State. She
enjoyed full equal treatment (the payment of the child benefit on exactly the
same terms as nationals). Having spent most of her life in Germany, she ben-
efited from the principle of solidarity, possibly even national solidarity, and
thus enjoyed full equal treatment on the same terms as nationals.
At the other end of the spectrum are those migrant citizens who have just
arrived in the host State. While Article 18(1) gives them the right to move
and reside freely in the host State,62 they are not entitled to equal treatment
in respect of social welfare benefits (e.g. the minimex) because they are not
yet integrated into the host State’s community and thus no solidarity exists
(of either the national or transnational variety), although they might receive
some social advantages on a non-discriminatory basis (e.g. translation ser-
vices for a court hearing, as in Bickel and Franz).63 This reasoning under-
pinned Advocate General Ruiz-Jarabo Colomer’s Opinion in Collins.64
Collins, who had Irish nationality, arrived in the United Kingdom and
promptly applied for a Job-seeker’s Allowance which was refused on the
grounds that he was not habitually resident in the UK. The Advocate General
distinguished Collins from Grzelczyk. He noted that the “broad statement” in
Grzelczyk, that those migrants who were legally resident were entitled to a
non-contributory social security benefit, did “not mean that, from then on,

59. Para 59. See also A.G. Geelhoed’s remarks in Ninni-Orasche supra note 39, paras. 90–
91. For an emphasis on the contextual approach which takes account of length of residence and
degree of integration, see A.G. Ruiz-Jarabo Colomer’s Opinion, in Collins, supra note 45,
paras. 65–67.
60. This is sometimes referred to as the “affiliation model”: see Golynker, supra note 45,
118–119.
61. See further Barnard, The Substantive Law of the European Union (Oxford, OUP, 2004),
ch. 15.
62. See also A.G. Geelhoed in Ninni-Orasche supra note 39.
63. Case C-274/96 [1998] ECR I-7637.
64. Collins supra note 45, especially para 69.

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 Court of Justice 1479

any Community nationals could settle in Belgium and, without further ado,
obtain the benefit” (para 67). He concluded that Community law did not re-
quire the benefit to be provided to a citizen of the Union who entered the
territory of a Member State with the purpose of seeking employment while
lacking any connection with the State or link with the domestic employment
market.
In the middle of this spectrum is Grzelczyk, who was only partially inte-
grated into the society of the host State and so enjoyed only limited equal
treatment (he received the minimex on the same terms as nationals but only
until he became an unreasonable burden on public funds when his right of
residence could be terminated).65
Bidar probably falls somewhere between Martínez Sala and Grzelczyk on
the spectrum. Although, like Grzelczyk, Bidar had been resident in the UK
for three years, as a proportion of Bidar’s life, that period was substantial.66
Furthermore, even though the Court did not expressly refer to this, his inte-
gration was qualitative as well as quantitative: his surviving family lived in
the UK, he had attended a British school and he was about to go to a British
university. His life was in the UK, just as Martinez Sala’s was in Germany.67
When viewed in this light, the decision in Bidar that he should enjoy access
to maintenance grants and loans on the same terms as nationals seems fair
and right.68

65. Baumbast supra note 46, can also be located here. Baumbast, a German national who
had been working in the UK, continued residing there with his family once his work in the EU
had ceased. While he had sufficient resources for himself and his family, his German medical
insurance did not cover emergency treatment in the UK, as required by Directive 90/364 and
the British authorities refused to renew his residence permit. The Court said that, given neither
Baumbast nor his family had become a financial burden on the State, it would amount to a
disproportionate interference with the exercise of the right of residence if he were denied resi-
dence on the ground that his sickness insurance did not cover the emergency treatment given in
the host Member State.
66. Bidar, para 62.
67. A.G. Geelhoed emphasized this point (para 60) “In assessing the degree of integration,
the individual circumstances of the applicant must necessarily be taken into account. As far as
this is concerned, it should be emphasised that the situation of an EU citizen who has come to
another Member State as a minor, as the dependant of another EU citizen, must be distin-
guished from EU citizens who have moved to another Member State as adults making their
own choices. The chances that an EU citizen in the situation of Bidar has integrated into society
as a young person, having lived there under the legal guardianship of his grandmother, who
was already settled in the United Kingdom, and having followed secondary education in the
host Member State, surely must be deemed to be greater than EU citizens arriving at later
stages of life.”
68. Following this analysis, a baby like Catherine in Chen, supra note 46, should also have
been entitled to full equal treatment. While it is hard to say that, at 8 months, she was fully
integrated into the UK, the UK was the only country she had ever known.

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 1480 Case law CML Rev. 2005

The “quantitative” approach to equality is reflected in the EU Citizens Di-

rective 2004/38 which envisages three groups of migrants. The first group
are those wishing to enter the host State for up to three months (Art. 6). They
have a “right of residence” in the host State for themselves and their families
and they enjoy a general right to equal treatment (Art. 24(1)) but not in re-
spect of social assistance (Art. 24(2)). The second group concerns those re-
siding in the host State for more than three months but less than five years
(Art. 7). They have a “right to residence” if they are workers, self-employed,
persons of independent means, and students or they are the family members
of one of these groups. This group enjoys not only the general right to equal
treatment but also equal treatment in respect of social assistance (Art. 24(1)).
However, Member States are not obliged to provide them with maintenance
grants unless they are economically active or assimilated thereto (Art.
24(2)).69 The third group concerns those legally residing in the host State for
a continuous period of more than five years.70 These citizens and their fam-
ily members have the right of “permanent” residence (Art. 16). As with the
second group, those with permanent residence also enjoy the right to equal
treatment (Art. 24(1)) but, in addition, Article 24(2) provides that they can
enjoy student maintenance in the form of grants or loans.
The qualitative approach to integration can also be found in the Directive,
albeit not in the context of establishing rights to equal treatment in respect of
length of residence. Article 28 provides that before taking an expulsion deci-
sion on grounds of public policy or public security, the host State must take
account of considerations such as “how long the individual concerned has re-
sided on its territory, his/her age, state of health, family and economic situa-
tion, social and cultural integration into the host Member State and the
extent of his/her links with the country of origin”.71

69. The Directive draws no distinction between those coming to the host State qua student
and those not coming in this capacity. See supra notes 38–39.
70. With certain exceptions to the 5-year rule e.g. those reaching pension age or suffer a
permanent incapacity or frontier workers.
71. See also Joined Cases C-482 & 493/01, Orfanopoulos v. Land Baden-Württemberg
[2004] ECR I-5257, para 99: “To assess whether the interference envisaged is proportionate to
the legitimate aim pursued, in this instance the protection of public policy, account must be
taken, particularly, of the nature and seriousness of the offences committed by the person con-
cerned, the length of his residence in the host Member State, the period which has elapsed since
the commission of the offence, the family circumstances of the person concerned and the seri-
ousness of the difficulties which the spouse and any of their children risk facing in the country
of origin of the person concerned.”

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 Court of Justice 1481

4.5. The effect of Directive 2004/38: Levelling up or down?

The existence of the EU Citizens Directive 2004/38 raises the further ques-
tion of whether there is a sell-by date for decisions like Bidar once the dead-
line for implementing the Directive has expired (30 April 2006)? As we have
seen, Article 24(2) allows Member States to require five years residence be-
fore granting maintenance to migrants, as compared with the three years en-
visaged in Bidar. The Directive presents two problems: first, how does the
Directive relate to Article 18(1) EC, and second, how might a country like
the UK implement its provisions?
In respect of the first point, the Court reached its decision in Bidar with-
out referring to the fact that Article 24 did not require equal treatment in re-
spect of maintenance grants until the migrant had resided in the host State
for five years (even though the Court made reference to the Directive to jus-
tify bringing assistance for students within the scope of Community law
(para 43). However, the Advocate General hinted that, despite the existence
of the Directive, the Court remained free to interpret the Treaty provisions on
citizenship without reference to the Directive. He said:
“Leaving aside that this directive entered into force on 30 April 2004, i.e.
after the facts in the present case arose, and that it must be transposed by
30 April 2006, it would seem to me that in applying this condition [the
five years residence rule], the fundamental rights conferred directly by the
EC Treaty on EU citizens must be fully respected.” (para 64)

Does this mean that, in a case arising after the Directive comes into force,
the Court will disregard the limits to the equality principle laid down by the
Directive? The Court has done this before, in the context of equal treatment
in respect of occupational pensions. Its infamous judgment in Barber,72 re-
quiring equality under Article 141 EC in respect of the age at which occupa-
tional pensions were paid, “automatically invalidates certain provisions of
Directive 86/378”.73 However, the Court’s decision generated such furore
that the Treaty was amended at Maastricht to “clarify” the temporal limita-
tion in Barber,74 an amendment which the Court accepted in Ten Oever.75

72. Case C-262/88, Barber v. Guardian Royal Exchange Assurance Group, [1990] ECR I-
1889.
73. Preamble to Council Directive 96/97/EC (O.J. 1997, L 46/20). Curtin, “Scalping the
Community legislator: Occupational pensions after Barber”, 27 CML Rev. (1990), 475.
74. Protocol Number 2.
75. Case C-109/91, Ten Oever v. Stichting Bedrijfspensioenfonds voor het Glazenwassers-
en Schoomaakbedrijf, [1993] ECR I-4879. For further details, see Barnard, EC Employment
Law (Oxford, OUP, 2000), pp. 352–368.

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 1482 Case law CML Rev. 2005

With this background in mind, it is unlikely that the Court will act so pre-
cipitously in the future by disregarding limits carefully negotiated by a Di-
rective. Furthermore, the Treaty itself expressly subjects the right for citizens
to move and reside freely to the “limitations and conditions laid down in this
Treaty and by the measures adopted to give it effect”. These limitations and
conditions would include those contained in Directive 2004/38 although the
Court’s creative use of the citizenship principle would mean that such limita-
tions would still be read subject to a fairly strict proportionality test.76
The second issue, concerning implementation, raises the difficult question
of whether Directives, and in particular Directive 2004/38, necessitate only
the levelling up of standards by the Member States or whether they can be
used as an excuse for levelling down. This is a particular problem for the
UK: if the UK was to impose a five year residence requirement for EU mi-
grants prior to entitlement to maintenance and loans this would be compat-
ible with Article 24(2) of the Directive but might be viewed as lowering
standards because, at present, migrant citizens have to show only three years’
residence (and settlement). Unlike social policy directives, the EU Citizens
Directive does not contain a standard non-regression clause. Article 37 of
Directive 2004/38, headed “More favourable national provisions” merely
provides: “The provisions of this Directive shall not affect any laws, regula-
tions or administrative provisions laid down by a Member State which would
be more favourable to the person covered by this Directive.” Article 37 indi-
cates that Directive 2004/38 is a minimum harmonization Directive: Member
States can adopt provisions which are more favourable to citizens than the
minima laid down by the Directive.77 In this way Article 37 mirrors standard
minimum harmonization clauses found in social policy directives such as the
Working Time Directive 2003/88.78

76. See Case C-413/99 Baumbast, supra note 46.

77. This is supported by e.g. 21st recital of the Preamble, and also by the Commission’s
commentary (COM(2001)257, 24) to the initial text of the Directive which says about the then
Art. 34 (which contains wording identical to the new Art. 37): “This Directive does not prevent
the application of national provisions that treat nationals of other Member States on terms that
are more favourable than those provided for in the present Directive. For example, any Mem-
ber State that gives non-EU family members status in their own right after two years of resi-
dence may continue to do so.” (Emphasis added.) The reference to “may” also implies that
Member States can lower standards when implementing the Directive.
78. O.J. 2003, L 299/9. Under the heading “More favourable provisions”, Art. 15 provides:
“This Directive shall not affect Member States’ right to apply or introduce laws, regulations or
administrative provisions more favourable to the protection of the safety and health of workers
….”

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 Court of Justice 1483

The Working Time Directive contains a non-regression clause headed

“Level of Protection”79 which provides that “… implementation of this Di-
rective shall not constitute valid grounds for reducing the general level of
protection afforded to workers” (Art. 23). The absence of an equivalent pro-
vision in the EU Citizens Directive would suggest that the UK remains free
to reduce its standards. However, the 29th preambular paragraph of the Citi-
zens Directive suggests that the Directive does not permit this. It provides:
“This Directive should not affect more favourable national provisions”.80 As
a matter of principle, a Directive which, at least in part, consolidates the pre-
existing case law of the Court, a body of case law which has generally given
greater rights to EU Citizens and which has been decided against the
backcloth of a Treaty whose “essential objective” is the “constant improve-
ments of the living and working conditions of their peoples”, 81 should not
be used to justify a lowering of standards. However, in the absence of any
express provision preventing Member States from lowering their standards
they may well try it for one very simple reason – cost.

4.6. The costs of equality in the context of higher education

For every social right given to a migrant citizen by EU law, it is the national
taxpayer that has to foot the bill. Thus, while the Court has said that Commu-
nity law requires migrant students to be treated equally with national stu-
dents in respect of fees (and any assistance towards fees) and, to a more
limited extent, in respect of maintenance grants and loans, it is the Member
States who have to pay the price. Furthermore, the requirements of EC law
hide a fundamental inequality in the system: the uneven flow of students
across the States. Certain States, notably the UK,82 Ireland and Belgium, are

79. In the Young Workers Directive 94/33 (O.J. 1994, L 216/12) the equivalent provision is
referred to as the “Non-reducing clause”.
80. See also the third preambular para: “Union citizenship should be the fundamental status
of nationals of the Member States when they exercise their right of free movement and resi-
dence. It is therefore necessary to codify and review the existing Community instruments deal-
ing separately with workers, self-employed persons, as well as students and other inactive
persons in order to simplify and strengthen the right of free movement and residence of all
Union citizens.”
81. Third preambular para of the Treaty establishing the European Community.
82. The UK is the most popular country of study among EU students, making it the largest
net importer of students within the EU: Ashton, “Projecting demand for UK higher education
from the Accession Countries” (www.hepi.ac.uk/downloads/8ProjectingDemandforUKHigher
EducationfromtheAccessionCountries.pdf) See also Case C-147/03, Commission v. Austria,
A.G. Jacobs’ Opinion of 20 Jan. 2005, para 53, citing OECD figures that the UK was “by far
the biggest net importer of foreign students”.

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 1484 Case law CML Rev. 2005

net recipients of students.83 This means that, where the fees charged do not
meet the full cost of the education provided, the national taxpayers in these
States subsidize the tuition received by all students, including migrant stu-
dents. National taxpayers also subsidize maintenance grants and loans,
where the interest charged is not at market rate. Where States are net recipi-
ents of students, the costs will not be offset by a saving on the maintenance
provided to those national students who study in other Member States.
The costs involved are substantial. For example, in the UK, government
funding for higher education amounts to £10 billion for 2005–6, equivalent
to around £400 for every income tax payer in England, whether or not they
personally gained from a university education.84 From September 2006,85
universities in England will be allowed to vary the fees they charge new stu-
dents from £0 to £3,00086 (most universities will, however, charge £3,000 for
their courses).87 Even this increased fee still does not meet the full cost of
university education which now stands at about £4,500,88 the difference be-
ing met by the taxpayer. The taxpayer will also subsidize the loans to cover
the costs of fees.89 In respect of maintenance, all eligible students are cur-
rently entitled to a loan of 75 percent of the maximum to help with living
costs. From 2006, students from the poorest backgrounds will also receive
the full (repayable) loan (100 percent of the maximum) together with a (non-
repayable) maintenance grant of up to £2,700 and at least £300 a year as a
bursary from their university if they are on a course which costs more than
£2700.90 Following Bidar, these benefits will have to be extended to those
migrants with three (or possibly 5) years’ residence. Once again, these loans
and grants, are subsidized by the taxpayer.
The inequalities generated by the fact that some States are net recipients
of students was raised by the Belgian Government 20 years ago in Gravier. It
argued that, in the absence of a sufficient degree of solidarity between Bel-

83. For further details, see Commission “The role of Universities in the Europe of knowl-
edge” COM(2003)58 final, 9 and Commission Staff Working Paper, Progress Towards the
Lisbon objectives in Education and Training, SEC(2005)419: Part B, Section 8.
84. White Paper, The Future of Higher Education, (2003), CM 5735, para 7.1.
85. For further details, see www.dfes.gov.uk/studentsupport/students/200_2006_entry.
shtml
86. This will replace the current £1,150 tuition fee.
87. Universities will only be allowed to charge more than the “standard fee” of around
£1,200 if they have signed up to an Access Agreement with the Office of Fair Access (OFFA).
88. White Paper, The Future of Higher Education, (2003), CM 5735, para 7.21.
89. In September 2004 the interest rate on the loans was 2.4%: www.dfes.gov.uk/
studentsupport/students/200_2006_entry.shtml
90. The fees and loans will be repayable after graduation once the student’s income exceeds
£15,000 a year.

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 Court of Justice 1485

gian taxpayers and migrant students, Belgium could justify demanding an

additional tuition fee (the minerval) from foreign students.91 It said that the
imbalance between the number of foreign students studying in Belgium and
the number of Belgian students living abroad (a fact that the Commission ac-
knowledged) had serious consequences for the national education budget.
This fact compelled the Belgian government to ask students who were “na-
tionals of other Member States and who normally do not pay taxes in Bel-
gium” to make a proportional contribution to the cost of education. These
arguments were unsuccessful.
Attitudes may well have changed since Gravier and the Court may be
right when it noted in Grzelczyk that there now is a certain degree of finan-
cial solidarity between migrants and the nationals of the host State. The
question is whether that transnational solidarity extends to cross subsidizing
the costs of higher education. From an economic (as opposed to educational)
perspective, student migration raises two issues: costs and places.92 In re-
spect of costs,93 the reality is that (poor and usually non-mobile) taxpayers
from the host State are supporting the further education of (already well edu-
cated, middle class) students from other Member States with whom they
share little by way of community of interests.94 These taxpayers cannot even
comfort themselves with the argument that these better educated students
will contribute more to the economies of the host State95 when 75 percent of

91. According to A.G. Slynn in Gravier, supra note 1, p. 596, Belgium had a higher per-
centage of nationals from other Member State studying in Belgium than any other State. The
minerval was introduced, not with the intention of reducing the flow of students, but “of ensur-
ing a certain financial stability”. The charge, which was less than 50% of the actual cost of
providing the education, represented the contribution made by the migrant student which, in
the case of Belgian students was made up of an element in the taxes paid by every resident
Belgian.
92. These issues are developed further in Barnard, “EU Citizenship and the principle of
solidarity” in Dougan and Spaventa (Eds.), Social Welfare and EU Law (Oxford, Hart, 2005).
93. Recent reports in the British press suggested that it would cost £900 million a year to
educate EU students in British universities, a figure expressly rejected by Alan Johnson, the
Minister for Higher Education who suggested a figure of around £30 million: Letter to The
Times, 4 Feb. 2004, 19.
94. See e.g. Bush, “University Admissions and Fees”, report for the Campaign for Real
Education, Mar. 2004, 6–7 who makes the “free-rider” argument most clearly: “While most
parents will probably accept a limited degree of subsidy to fully deserving British students,
they will draw the line at subsidising EU students. … If, under the provisions of the HE Bill,
students from the ten EU accession countries (with average wages in these countries ranging
from one-tenth to one-third of the UK’s) have the parental income test applied to them, one can
expect that virtually all will qualify for fee rebates and maintenance bursaries, which the gov-
ernment is now proposing to offer in cash ‘upfront’. In effect these students will obtain a free
British university education for a wide range of courses.”
95. Although cf. A.G. Jacobs in Case C-147/03, Commission v. Austria (infra note 99),

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 1486 Case law CML Rev. 2005

them subsequently return to their home State96 and of those who remain
many do so for only a relatively short period of time.97
In respect of the availability of places, in the UK at least, every incoming
migrant EU student will take a place which might have been occupied by a
domestic student.98 Some of the implications of this issue were considered
directly by the Court in recent Article 226 enforcement proceedings against
Austria.99 Austrian law allowed broad access to higher education for holders
of Austrian school leaving certificates but subjected those with comparable
certificates from other Member States to more stringent requirements. The
principal ground offered by Austria to justify its indirectly discriminatory
rules was to preserve the “homogeneity of the Austrian higher or university
education system” (para 47). It argued that if it did not impose some limita-
tion, Austria, with its policy of unrestricted access to all levels of educa-
tion,100 could expect a large number of students with diplomas awarded in
other States (especially Germany), who had failed to be admitted to higher
education courses in those States, to try to attend higher education courses in
Austria. Such a situation, it argued, would cause “structural, staffing and fi-
nancial problems”.101

para 36 who noted that students are a source of income for local economies where the univer-
sity is located, and also, to a limited extent, for the national treasuries via indirect taxes. See
also Scholsem, “A Propos de la Circulation des Étudiants: Vers un Fédéralisme Finacier
Européen?” (1989) CDE, 306.
96. Although one newspaper reported, in respect of the debate on enlargement, that “the net
benefit to the UK from the arrival of students from the accession countries through extra taxes
paid by students after graduating – was estimated at £80 million a year”: Miles, “Warnings
over Influx of EU college Students”, The Evening Standard, 4 Mar. 2004, 24. For more detailed
discussion of the cost benefit analysis, see Ashton, supra note 82.
97. Ashton, supra, note 82, 7.
98. See the comments of Sir Howard Newby, chief executive of the Higher Education
Funding Council for England reported by Lightfoot, “Students face EU fight for Places”, Daily
Telegraph, 4 March 2004, 1. He said that “We expect to admit students on their merit. Most
universities take the view that they want the most talented students almost irrespective of their
origins. If they come from Estonia as opposed to Egham, that is a matter for them”. This prob-
lem has been brought into sharp focus by enlargement. A report from the Higher Education
Policy Institute (www.hepi.ac.uk/articles) predicted that 30,000 students will arrive from the
accession countries and that this is “likely to increase competition for places … If the govern-
ment does not provide the extra places, some of these will be displacing UK students”.
99. Case C-147/03, Commission v. Austria, judgment of 7 July 2005, nyr.
100. According to the A.G.’s Opinion, this policy was introduced to improve the percent-
age of Austrian citizens with a higher education qualification which was one of the lowest in
the EU (para 26).
101. Para 50, citing the Court’s case law on access to healthcare services (Case C-158/96,
Kohll, [1998] ECR I-1931, para 41 and Case C-368/98, Vanbraekel, [2001] ECR I-5363 by
analogy.

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 Court of Justice 1487

The Court found, in paragraphs 65–66, that there was little evidence that
this was in fact a problem and even if it was, the justification based on pre-
serving the homogeneity of the Austrian higher education system was not, in
fact, demonstrated by the Austrian Government. Even if it was a problem,
the Court offered a simple solution: excessive demand for access to specific
courses could be met by the adoption of specific non-discriminatory mea-
sures such as the establishment of an entry examination or the requirement
of a minimum grade (para 61).102 It also noted that the risks alleged by the
Austrian Government were not exclusively an Austrian problem “but have
been and are suffered by other Member States” (para 62) (including Belgium
which had introduced similar restrictions which were also found to breach
Community law103). But in its rapid dismissal of the Austrian justification,
the Court ignored that fact these problems were experienced by only a cer-
tain number of Member States and that its own case law lay at the root of
these very problems.
Advocate General Jacobs, in an Opinion which pre-dated Bidar, was also
not convinced by Austria’s arguments, considering that the “homogeneity”
argument was tantamount to “privileged access for Austrian citizens” (para
30). However, he suggested that if the Court said that students were entitled
to maintenance grants “the financial burden of the free movement of stu-
dents on state resources would become significant”, and this would be a
good reason for States to be allowed to invoke economic grounds,104 albeit
narrowly tailored, to justify certain restrictions on their availability to mi-
grants.105 Permitting States to use economic justifications to prevent national
systems from being, as the Advocate General put it at paragraph 26,
“flooded” with students from other Member States would be one way to help
address the difficult balance between ensuring free movement of persons
while at the same time preserving access for nationals to their own sys-
tems.106 A more radical solution would lie with the EU itself footing the bill
for this migration. However, at present this is blue sky thinking: the EU has
no such budget and probably no competence to act. And herein lies the para-

102. This may well be the Austrian response: euobserver.com, 5 Sept. 2005.
103. Case C-65/03, Commission v. Belgium, judgment of 1 July 2004, nyr.
104. Para 43. See the parallels with the healthcare cases such as Case C-157/99, Geraets-
Smits and Peerbooms, [2001] ECR I-5473 and Case C-385/99, V.G. Müller-Fauré v.
Onderlinge Waarborgmaatschappij oz Zorgverzekeringen UA, [2003] ECR I-4509.
105. See also A.G. Slynn in Gravier, supra note 1, p. 604, “Since State education is sub-
stantially supported by revenues from resident nationals, there is force in the argument that it is
not discriminatory to require those who do not contribute directly or indirectly to the common
weal to make some contribution”.
106. For a parallel debate on healthcare, see A.G. Jacobs’ Opinion in Commission v. Aus-
tria.

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 1488 Case law CML Rev. 2005

dox. The Court has given potentially significant rights to migrants in a policy
area – education – in which the European Community has only “supporting
competence”107 and, in so doing, trespasses on two domains – taxation and
the budget – areas of the ultimate political sensitivity.

5. Conclusion

Bidar joins the ever expanding line of cases in which the Court makes clear
that Community law does not benefit only the economically active migrant.
Since the introduction of the status of Union citizenship, the Court has been
prepared to recognize that migrants who are not economically active but law-
fully resident now enjoy entitlement to certain benefits under the same terms
as nationals.108 However, there is a key difference between economically ac-
tive and non-economically active citizens: those who are economically active
enjoy full equal treatment from the first day of their arrival in the host State.
And since it is perceived that they contribute to the economy of the host
State, the Court does not have to work hard to justify their equality of treat-
ment.
By contrast, those who are not economically active do not enjoy full
equality of treatment from the first day of their arrival, despite early sugges-
tions to the contrary.109 Instead, the Court has offered a more nuanced ap-
proach to equality, based on the length of stay in the host State and the depth
of integration into the society of the host State. Furthermore, in the absence
of a direct link between contribution and receipt of benefits, the Court has
had to work much harder to justify imposing any obligation on the host State
to ensure equal treatment. It has therefore used EU citizenship to justify in-
voking the solidarity principle to give non-economically active migrants
rights. And, in so doing, the Court has taken some steps towards giving
Union Citizenship substance by developing the idea of genuine solidarity be-
tween the citizens of all 25 Member States. We can therefore see a process of
boot-strapping taking place – citizenship (imposed from above) is used to
justify taking limited steps in the name of solidarity and solidarity is being
used from the bottom up to foster a growing sense of citizenship.110

107. See supra, note 49.

108. A.G. Geelhoed’s Opinion in Bidar, para 28.
109. See e.g. A.G. Léger in Case C-214/94, Ingrid Boukhalfa v. Germany, [1996] ECR I-
2253, para 63.
110. On the centrality of education to this process, see A.G. Geelhoed’s Opinion in
D’Hoop, supra note 21, para 41.

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 Court of Justice 1489

However, the Court has shown some awareness of the sensitivities of the
issue, in particular concerns about “benefit tourism”.111 As a result, it has al-
lowed Member States to insist on a demonstrable link with the host State’s
territory before an individual becomes entitled to benefits, whether it is
through a period of residence as in Bidar or a genuine link with the employ-
ment market of the host State as in D’Hoop. If it were otherwise, then any
enforced equality would have the potential to generate such hostility and
anti-migrant feeling among host State nationals that, far from fostering a
sense of Union citizenship, it could do the reverse.

Catherine Barnard*

111. That is “moving to a Member State with a more congenial social security environ-
ment”: Case C-456/02 Trojani, supra note 11, A.G. Geelhoed’s Opinion, para 13 and para 18.
See also his Opinion in Bidar at para 66.
* University of Cambridge.

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